Court conflict may need recycling

Judge grants city motion to dismiss Earth Recycling claim

Kim Fundingsland

Staff Writer

kfundingsland@minotdailynews.com

Eloise Ogden/MDN
A judge has ruled on the Earth Recycling and City of Minot case. This photo shows a scene of the fire at the Earth Recycling business on the west side of Minot on May 18, 2017.

If there was a winner in the case of a business challenging the City of Minot, it is at best a hollow victory.

Judge Douglas Mattson issued a written order late Tuesday granting the City of Minot’s motion to dismiss. Earth Recycling was contesting the city’s cease and desist letter of May 18, 2017.

The recycling business had been operating on Minot’s western edge since 2008. A fire destroyed much of the business, including a building, on May 18, 2017. Because the damage exceeded 60 percent of the property, the city notified Earth Recycling that it was required to meet the current zoning ordinance that does not allow a business such as the one being conducted prior to the fire. Earth Recycling countered that it was “grandfathered” and therefore did not need to comply with new zoning requirements.

Although the city was granted the dismissal, Mattson admonished both parties in his ruling for not “exhausting” all possible remedies. He wrote that “the parties would not be in this legal inferno” if Divine Mercy, the landowner who entered into a lease with Earth Recycling, had required an insurance policy that would have covered post-fire clean-up costs. Mattson added that, “the City’s actions have added to this disappointing situation.”

In his summary Mattson wrote, “From a public standpoint, the parties should treat this matter like lunch and acknowledge there is no free clean-up. The parties need to come to the table and serve their public.”

“There’s no obligation or agreement. It’s not really a victory for the city since it was dismissed on procedural grounds,” said Lynn Boughey, attorney for Earth Recycling.

In arguments before Mattson preceding Tuesday’s ruling, Boughey contended the city was responsible for delays in the processing of the case by refusing to cooperate and not clearly explaining deadlines for his client to meet in response to actions by the city.

“It’s another example of the city refusing to be reasonable, refusing to cooperate and shooting themselves in the foot,” said Boughey. “It shocks me that no one in the city is thinking long term or willing to cooperate in any way. It’s just amazing.”

In its cease and desist letter, the city notified Earth Recycling that it needed to apply for a “conditional use permit or interim use permit” to be in compliance with city zoning ordinances. The company did not apply. According to Boughey, doing so would have been an admission that the business was not grandfathered, which was the basis of much of the plaintiff’s case for continuing to operate a recycling business post-fire.

Mattson referred to an “adamant belief that they had been grandfathered in” while noting that Earth Recycling “unilaterally decided a permit was not necessary and came straight to District Court.” In issuing his dismissal, Mattson wrote “the Court finds it is without subject-matter jurisdiction in this matter.”

In a settlement offer to the city, Earth Recycling requested it be allowed to operate a limited recycling business on the property until Aug. 1 while simultaneously conducting a clean-up for up to a year. However, without a permit issued by the city, the bringing of new recyclables onto the property, wrote Mattson, is “tantamount to operating a recycling center,” which is not currently allowed.

“All the major issues we had we agreed with them but the city wouldn’t take yes for an answer,” claimed Boughey. “This puts us back to square one with no deadline. The site can stay as is for the next hundred years.”